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Post by privateatty on Nov 20, 2009 17:02:45 GMT -5
Recently the following was posted regarding SSA discipline imposed upon an ALJ: "PII Release and Complaint to State Bar Association in Region 10 – MSPB charges seeking suspension for violations of PII and for a complaint being made about a representative to the State Bar. Suspension reduced to 5 days in a settlement of the charges." The primary grounds for discipline apparently was an alleged violation of wrongfully releasing personal information to a State Bar. A review of the Model Rules (which I believe 49 States have adopted) finds the following: "ABA Model Rules of Professional Conduct Rule 8.3 Reporting Professional Misconduct (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority." I also reviewed the Model Rules regarding Judicial Conduct and nowhere does it relieve a Judge (Administrative or otherwise) from the Rules of Professional Conduct. My point is how can the MSPB entertain the notion that usurping the State Bar is justified? As to SSA's rationale, they must believe that their concern that release of sensitive personal information trumps the Bar's jurisdiction over the integrity of the Bar. This Board had briefly discussed this issue before, but now we have solid information that this is occurring. To me, it is frightening.  What sayeth you? |
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Post by nonamouse on Nov 20, 2009 19:42:02 GMT -5
The "model rules" are not binding on attorneys and therefore I would not quote them as something that demonstrates the jurisdiction of a state bar was usurped. The problem is not that the ALJ wanted to have action taken against an attorney who was misbehaving. The violation was in filing a complaint that released a claimant's PII to the state bar. We simply cannot take it upon ourselves to abuse our access to a citizen's personal, private and sometimes very intimate information about their medical condition or SSN or anything else that identifies them and release it to any unauthorized person or group.
There are authorized procedures for handling wayward attorneys (slow and unsatisfying though they may be). I have already had the misfortune to see a slew of attorneys who I find less than competent. I can easily visualize them being torn to shreds inside of week in "real court" where there are actual rules for the evidence and contempt powers. No matter how bad I feel for the poor people who unfortunately hired these slubs, I can't release private info on my own authority in order to get the attorneys disciplined by the state bar. The ALJ who MSPB disciplined made a serious error and given the lengthy time it normally takes them to act on something, it was likely not the first error of this kind.
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Post by Orly on Nov 20, 2009 21:23:07 GMT -5
I agree with Nonamouse. The agency has its rules and policies, and we all know what they are. We as ALJs are still bound by them, and no one is above the law. We don't have the authority to unilaterally release a claimant's PII to a third party, and we need to mindful of that.
So when I read about that one in the union newsletter, it was no biggie for me.
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Post by privateatty on Nov 21, 2009 10:39:42 GMT -5
The "model rules" are not binding on attorneys and therefore I would not quote them as something that demonstrates the jurisdiction of a state bar was usurped. The problem is not that the ALJ wanted to have action taken against an attorney who was misbehaving. The violation was in filing a complaint that released a claimant's PII to the state bar. We simply cannot take it upon ourselves to abuse our access to a citizen's personal, private and sometimes very intimate information about their medical condition or SSN or anything else that identifies them and release it to any unauthorized person or group. There are authorized procedures for handling wayward attorneys (slow and unsatisfying though they may be). I have already had the misfortune to see a slew of attorneys who I find less than competent. I can easily visualize them being torn to shreds inside of week in "real court" where there are actual rules for the evidence and contempt powers. No matter how bad I feel for the poor people who unfortunately hired these slubs, I can't release private info on my own authority in order to get the attorneys disciplined by the state bar. The ALJ who MSPB disciplined made a serious error and given the lengthy time it normally takes them to act on something, it was likely not the first error of this kind. The Model Rules are binding on the States insofar as your particular State's Rule mandating that you report an attorney who violates a Disciplinary Rule is binding upon you as an attorney. Check your Bar's Rules and you will see the Rule I cited. To think that somehow the Social Security Administration can usurp the power and authority of the State Bar is a notion that would not stand the light of day in any competent Art. III Court, state or federal. I just hope that this "wayward" ALJ gets to prove my point. This type of thinking is dangerous. In invests power with the SSA that they do not have. Yes, you may have your own procedures to "discipline" an attorney, but to think that they somehow are the only avenue that you have as an ALJ is wrong. Just ask your State Bar. If I'm wrong (doubt it), I'll apologize on this Board. In addition, if the State Bar asks for sensitive and private personal information from the Complainant, of course they must give it up. They are an arm (in my two States) of the Supreme Court. Again, you have a sworn duty to do so. You assume that it is not protected. It can and will be. If I were an attorney in your Office and I knew you did not report a DR, I would report it and report you after I had the opinion letter from the State Bar requiring me to do so in my pocket. This is black and white, there is no gray. If SSA disciplined me, I would report any attorney who filed against me. Also, I would take the MSPB action to the federal court. |
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Post by Orly on Nov 21, 2009 15:31:52 GMT -5
If I were an attorney in your Office and I knew you did not report a DR, I would report it and report you after I had the opinion letter from the State Bar requiring me to do so in my pocket. This is black and white, there is no gray. If SSA disciplined me, I would report any attorney who filed against me. Also, I would take the MSPB action to the federal court. This is a pointless argument without the specifics of the underlying case, the Bar Jurisdictions of the relevant parties. All I have to say is if anyone who discloses a claimant's PII (SSN, medical condition, etc.) to a third party better have some money set aside for attorney's fees. The agency takes this seriously (as they should) enough to go to the MSPB, and I don't believe you get your attorney's fees back even if you successfully defend yourself.  |
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Post by privateatty on Nov 21, 2009 17:39:12 GMT -5
If I were an attorney in your Office and I knew you did not report a DR, I would report it and report you after I had the opinion letter from the State Bar requiring me to do so in my pocket. This is black and white, there is no gray. If SSA disciplined me, I would report any attorney who filed against me. Also, I would take the MSPB action to the federal court. This is a pointless argument without the specifics of the underlying case, the Bar Jurisdictions of the relevant parties. All I have to say is if anyone who discloses a claimant's PII (SSN, medical condition, etc.) to a third party better have some money set aside for attorney's fees. The agency takes this seriously (as they should) enough to go to the MSPB, and I don't believe you get your attorney's fees back even if you successfully defend yourself. I don't consider this an argument. But then my threshold is rather high as as been previously demonstrated. Of course there should be discipline of a Judge, attorney who disclosed a Claimant's PII. That act, incidentally was not done in a vacuum. But that point is way afield of my main contention: That SSA is wrong to think it can usurp the power of a State Bar to discipline its attorneys, including ALJs. |
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Post by Propmaster on Nov 23, 2009 14:46:14 GMT -5
PA's point has to do with our dual responsibilities as ALJs and as attorneys. We are obligated to comply with our state bar rules, obviously, as they govern our license to practice law. If your state bar requires you to report violations by attorneys, then you must do so. Our agency's may also have rules relative to attorney misconduct, and they too should be followed. The two are not mutually exclusive. I think PA's point is that where the two conflict, i.e., SSA says one thing and state bar says another, you should seek an opinion letter from your state bar counsel on how to proceed, and you should contact your agency Ethics Officer for guidance, before you take any action. First, we identify the problem then we seek guidance form those who are paid to deal with these issues. No one will ever criticize you (or file an MSPB Complaint against you) if you follow those protocols. I don't see the conflict. Report the attorney without including the claimant's PII. If it gets to the point that the specifics are relevant, the attorney has already been scared (hopefully) and mission accomplished. |
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Post by ruonthelist on Nov 24, 2009 7:58:02 GMT -5
I don't see the conflict. Report the attorney without including the claimant's PII. If it gets to the point that the specifics are relevant, the attorney has already been scared (hopefully) and mission accomplished. I agree. I don't see a conflict between the duty to report misconduct and to safeguard PII. I can't envision any situation in which revealing the claimant's PII would even be useful, much less necessary, in making a report of impropropriety by the rep: "Attorney Sam Smith, in the course of representing a Social Security claimant, violated Disciplinary Rule Y by doing Z." "Attorney Sam Smith, in the course of representing Mr. John Jones (who suffers from congestive heart failure, degenerative disc disease, and an anxiety disorder, and whose social security number is 123-45-6789) violated Disciplinary Rule Y by doing Z." I know which of those I would use as a template, but that's just me. It seems unlikely to me that disclosing the claimant's PII would be necessary to making the case for the attorney's misconduct, but I'm willing to grant the possibility for the sake of argument. If that were to happen, that's why felt pens were invented. If it really is necessary to include case papers as attachments to the complaint, all you have to do is redact the claimant's name, SSN, and other PII. Having said that, I think that PA's original post made a very good point. The notice that he quoted said that the ALJ was disciplined for violations of PII and for making a complaint to a state bar. If the judge improperly released PII the agency has a valid grounds for discipline. It is troubling that they would tack on a superfluous charge of reporting misconduct to a state bar. I have no problem with a 5 day suspension for an improper release of PII, but do have a problem with creating a precedent that fulfilling the ethical duty to report attorney misconduct is grounds for discipline. |
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Post by morgullord on Nov 24, 2009 12:48:44 GMT -5
If one wishes to make one's life interesting, play the game SSA's way: inform the higher ups of the scalawag attorney's misconduct. If no action is taken in a timely manner, report the higher up to the Office of Special Counsel. Keep it in-house; keep it tidy. Not sure if it would work but it would make life interesting...
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Post by privateatty on Nov 24, 2009 19:49:25 GMT -5
I don't see the conflict. Report the attorney without including the claimant's PII. If it gets to the point that the specifics are relevant, the attorney has already been scared (hopefully) and mission accomplished. I agree. I don't see a conflict between the duty to report misconduct and to safeguard PII. I can't envision any situation in which revealing the claimant's PII would even be useful, much less necessary, in making a report of impropropriety by the rep: "Attorney Sam Smith, in the course of representing a Social Security claimant, violated Disciplinary Rule Y by doing Z." "Attorney Sam Smith, in the course of representing Mr. John Jones (who suffers from congestive heart failure, degenerative disc disease, and an anxiety disorder, and whose social security number is 123-45-6789) violated Disciplinary Rule Y by doing Z." I know which of those I would use as a template, but that's just me. It seems unlikely to me that disclosing the claimant's PII would be necessary to making the case for the attorney's misconduct, but I'm willing to grant the possibility for the sake of argument. If that were to happen, that's why felt pens were invented. If it really is necessary to include case papers as attachments to the complaint, all you have to do is redact the claimant's name, SSN, and other PII. Having said that, I think that PA's original post made a very good point. The notice that he quoted said that the ALJ was disciplined for violations of PII and for making a complaint to a state bar. If the judge improperly released PII the agency has a valid grounds for discipline. It is troubling that they would tack on a superfluous charge of reporting misconduct to a state bar. I have no problem with a 5 day suspension for an improper release of PII, but do have a problem with creating a precedent that fulfilling the ethical duty to report attorney misconduct is grounds for discipline. Thanks ru, for bringing this back on track! And yes, a miscreant is a miscreant, but other "crimes" the attorney committed is hardly within the issue presented. |
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